|YUTAN EDUCATION|||||CASE NO. 865|
|v.|||||FINDINGS AND ORDER|
|SAUNDERS COUNTY SCHOOL||||
|DISTRICT NO. 0009, a/k/a||||
|YUTAN PUBLIC SCHOOLS,||||
For the Petitioner: Mark D. McGuire
McGuire & Norby
605 South 14th St., Suite 405
Lincoln, Nebraska 68508
For the Respondent: Kelley Baker
Harding & Ogborn
800 Lincoln Square
121 South 13th Street
P. O. Box 82028
Lincoln, Nebraska 68501-2028
Before: Judges F. Moore, Kratz and Flowers
NATURE OF PROCEEDINGS
A petition was filed by the Yutan Education Association seeking to have the Commission resolve an industrial dispute pursuant to Neb. Rev. Stat. § 48-818 (1988) for the thirty-nine teachers employed by Saunders County School District No. 0009 ("Yutan"). The year in dispute is the 1993-94 contract year. Yutan has a student enrollment of 479.
Petitioner's issues are base salary, contract continuation language, the school district's ability to deviate from the index salary schedule, compensation provided to head coaches and assistant coaches, employer paid health insurance and the premiums associated therewith, array and whether the Commission has jurisdiction to eliminate language from the parties' negotiated agreement. Respondent's issues are array, base salary, salary schedule (specifically, Respondent seeks the elimination of the BA + 36 column), and the elimination of paragraph no. 10 of the parties' negotiated agreement which states: "The length of a normal teaching contract shall be 185 days" and "The teacher's work day is 8 hours per day."
Petitioner and Respondent both offered the school districts of Arlington, Ashland-Greenwood, Bennington, Cedar Bluffs, Mead, Raymond Central, Valley, Wahoo, Waterloo and Weeping Water. Petitioner also offered the school districts of Fort Calhoun and Gretna. Respondent did not offer any non-common schools. Table 1 sets out the relevant information on the proposed array members. Petitioner and Respondent used the same criteria for selection of their array: size of student enrollment and geographic proximity. The parties stipulated that the work, skills and working conditions of the ten common school districts are sufficiently similar to satisfy the standards set forth in Neb. Rev. Stat. § 48-818 (1988). By making this stipulation, neither party agreed that the non-common schools are appropriate for inclusion in the final array selected by this Commission.
Except for Gretna, all of the school districts offered by the parties fit within the Commission's size criteria of one-half to twice the student enrollment of the disputed school district. Petitioner selected Gretna because it is geographically close to Yutan and argues that it should be included in the array based upon the Commission's decision in Crawford Teachers Association v. Dawes County School District No. 0071, 11 CIR 254 (1991) to include a school that fell outside of the size criteria. In Crawford, all of the twelve schools, except Cody-Kilgore, fit within the Commission's size criteria. Cody-Kilgore was two students less than one-half of the student enrollment at Crawford. We included Cody-Kilgore, stating that "array members used to determine comparability should generally range from one-half to twice as large as the employer in question." Id. at 256. Gretna's enrollment, on the other hand, is forty-two students greater than twice the student enrollment at Yutan. The Commission declines to include Gretna in the final array.
Although the Respondent did not include Fort Calhoun in it's array, it does not object to the inclusion of Fort Calhoun as an array member. The superintendent of the Yutan Public Schools testified that Fort Calhoun was not included in Respondent's array because it did not receive its survey response from Fort Calhoun in a timely fashion. In light of this, the Commission shall include Fort Calhoun in its final array.
The Commission's array shall consist of Arlington, Ashland-Greenwood, Bennington, Cedar Bluffs, Fort Calhoun, Mead, Raymond Central, Valley, Wahoo, Waterloo and Weeping Water.
At the commencement of the trial, both parties stipulated on the record that . . . "the health insurance continues to be high option with pre-certification, 80 %, AB Dental." Petitioner's Exhibit 16, which sets forth the various health and dental insurance plans in its proposed array, characterizes this type of insurance as #1P/#1. This plan is prevalent, as indicated by Table 2, and shall continue to be the plan at Yutan.
Table 3 indicates that the prevalent premium paid by the school districts is $162.46 for single coverage (single health and single dental) and $444.09 for dependent coverage (family health and single dental). When both spouses are employed as teachers at the same school district, it is prevalent for the school district to pay $232.14 for each teaching spouse or $464.28 for the teaching couple (family health and family dental). These figures represent 100 % of the monthly premium amount at Yutan. The Respondent shall pay $162.46 per month for single coverage, $444.09 per month for family coverage and $232.14 per month for each teaching spouse ($464.28 per month for the teaching couple).
DEVIATION FROM INDEX SALARY SCHEDULE
The prior collective bargaining agreement between the parties provides, in part, that "the Board may deviate from the schedule as conditions warrant." (Ex. 35). Petitioner argues that Yutan's contract language allowing the Respondent to deviate from the salary schedule is not prevalent. Table 4 sets forth the Commission's determination of the contract language of the array members regarding their authority to deviate from the index salary schedule. Our determination of prevalence differs from the Petitioner's as set forth in Exhibit 17, in that we find that the Arlington and Mead contracts do allow deviation. Nevertheless, we do find that seven of the eleven schools in the Commission's array do not have specific contract language authorizing the school to deviate from the salary schedule, and thus, it is not prevalent to do so. The Commission has previously determined the prevalence of similar contract language in the case of Wayne Education Association v. School District of Wayne, 9 CIR 281 (1988). We hold that the Respondent shall eliminate from its contract, the language allowing the Yutan School Board to deviate from the salary schedule as conditions warrant.
CONTRACT CONTINUATION LANGUAGE
The Petitioner has requested the Commission to order the inclusion of language in the contract which provides for continuation of the terms of the negotiated agreement until a new agreement is adopted.
The Respondent argues that the Commission does not have jurisdiction to order such a change to the contract. It should be noted that this same issue was raised in Red Cloud Education Association v. School District of Red Cloud, 10 CIR 120 (1989) and the Commission did determine the prevalence of contract continuation language.
Exhibit 18 summarizes the contract provisions upon which Petitioner relies for its position that such language is prevalent. However, the Commission disagrees with Petitioner's interpretation of the contract language in the Bennington, Wahoo and Raymond Central contracts.
The following contract language is contained in the Bennington contract: "Teachers automatically advance on the salary schedule if contracts are not settled before the new year begins." However, advancement on the salary schedule is only one of many terms of employment contained in their contract. We find that this language does not constitute contract continuation language as contemplated in this case.
Petitioner relies on the following language for its position that Wahoo has contract continuation language: "If a new and substitute contract has not been duly entered into prior to the beginning of the 1994-95 school year, the terms of this contract may, upon agreement of the Board and the Association, shall continue in full force and effect until such substitute contract is adopted. . . ." However, the contract does not continue unless both parties agree to such continuation. This option would still exist in the absence of the above contract language. Accordingly, we find that this does not constitute effective contract continuation language.
Petitioner cites to the following language for its position that Raymond-Central's contract contains continuation language: "These rules and regulations agreed upon by the Raymond Central Board of Education (hereinafter referred to as the "Board") and the Central Public Education Association (hereinafter referred to as the "Association") shall continue in full force until amended and/or altered by official Board action; provided such action is in conformity with the provisions of this agreement." This language appears to give all of the authority over the contract's continuation to the Board and none to the Association. Arguably, one day after the contract expires, the Board could take official action and change the contract. The following language requiring that Board action be in conformity with the agreement is confusing. We are unable to determine from this language whether this amounts to contract continuation language.
Excluding Raymond Central from the array in considering the prevalence of this issue, Table 5 indicates that of the remaining ten array members, five have contract continuation language and five do not. Therefore, such language is not prevalent. The Yutan collective bargaining agreement does not presently contain continuation language and no change shall be ordered.
LENGTH OF WORK DAY AND WORK YEAR
The following language is contained in the parties' collective bargaining agreement for the 1992-93 school year: "The length of a normal teaching contract shall be 185 days" and "The teacher's work day is 8 hours per day." Respondent has requested that the Commission eliminate this contract language because it is within the realm of management prerogative. Petitioner agrees with Respondent that this language is a subject of management prerogative. However, Petitioner argues that because this language is a subject of management prerogative, the Commission lacks jurisdiction to grant the relief sought by Respondent.
The Commission's jurisdiction is limited to industrial disputes. See Neb. Rev. Stat. § 48-810 (1988) ("industrial disputes . . . shall be settled by invoking the jurisdiction of the Commission of Industrial Relations."). "Industrial dispute" is defined as "any controversy concerning terms, tenure, or conditions of employment. . . ." Neb. Rev. Stat. § 48-801(7) (1993 Supp.). However, "not every controversy concerning terms, tenure, or conditions of employment is indeed an industrial dispute under the [Industrial Relations] Act giving jurisdiction to the CIR." Transport Workers of Am., Local 223 v. City of Omaha, 205 Neb. 26, 31, 286 N.W.2d 102, 106 (1979).
The Nebraska Supreme Court has stated that "conditions of employment can be interpreted to include only those matters directly affecting the teacher's welfare." School Dist. of Seward Educ. Ass'n v. School Dist. of Seward, 188 Neb. 772, 784, 199 N.W.2d 752, 759 (1972). The Supreme Court further stated that the right to schedule work is exclusively within management prerogative. Id.
The Commission holds that the number of hours in a work day and the number of work days per year are subjects of management prerogative. As such, they do not fall within the definition of industrial dispute, and thus, the Commission lacks jurisdiction to determine the prevalence of this language. In Red Cloud Education Association v. School District of Red Cloud, 10 CIR 120 (1989), the school district sought to eliminate contract language stating the maximum number of days in a work year for teachers. The Commission made a finding in Red Cloud that such language was not prevalent. The Commission is aware that its position in the case at bar may be inconsistent with Red Cloud. To the extent that Red Cloud held that the Commission has jurisdiction to determine the prevalence of the number of days in a work year for teachers, it is hereby overruled.
However, since the determination of the length of the contract and the length of teacher's work days are not bargainable terms or conditions of employment, but rather, are within the realm of management prerogative, we hold that the Respondent is not required to continue this language in the agreement for the 1993-1994 school year, as part of the pretrial stipulation. To rule otherwise would require the Respondent to be bound to terms of employment which are issues of management prerogative.
EXTRA DUTY PAY
Petitioner has asked the Commission to determine the comparable pay for the extra duty positions of head, assistant and junior high football coaches, head, assistant and junior high basketball coaches, head and junior high track coaches, head and junior high volleyball coaches and head cross country coach.
In setting extra duty pay, the practice of the Commission is to set it as a pool. See Diller Educ. Ass'n v. School Dist. Number 103, 7 CIR 196, 202-203 (1984); Diller Educ. Ass'n v. School Dist. Number 103, 8 CIR 12, 19-20 (1985); Valentine Educ. Ass'n v. School Dist. Number 6, 8 CIR 271, 279 (1986); Papillion-LaVista Educ. Ass'n v. School Dist. of Papillion-LaVista, 10 CIR 18, 25 (1988); Milligan Educ. Ass'n v. Fillmore County School Dist. Number 0071, 11 CIR 89, 93 (1991). When it is set as a pool, comparability is determined by comparing the total amount spent by each array school for all of its extra duty positions. The Commission then sets total compensation for all extra duty positions at the disputed school leaving the decision regarding allocation of the pool among the various extra duty positions to the school district.
The Commission has been asked in the past to change its method of determining comparable extra duty pay. We have consistently declined in past cases, and we decline to do so in this case. "[T]he Commission does not have the authority to determine which extra curricular programs should be emphasized at the individual schools and we will not invade the province of the school district and determine where such emphasis should be placed in terms of actual dollars. The unique needs of each school district necessitate that questions of educational policy, such as which extracurricular programs to emphasize, remain under the control of the school district. The school district is most knowledgable (sic) of the priorities and needs of the community it serves." Valentine, 8 CIR at 279.
Since the Petitioner has not requested that the Commission set the extra duty pool in total, no changes shall be made.
SALARY SCHEDULE/BA + 36 COLUMN
Respondent seeks the elimination of the BA + 36 column. Table 6 shows which of the array schools have a BA + 36 column. Seven schools have such a column, two schools do not and two schools have grandfathered in its elimination. A BA + 36 column is prevalent and Yutan's BA + 36 column shall remain unchanged.
Table 7 sets forth the total compensation figures for the schools in the Commission's array. Where necessary these figures were adjusted for differences in contract days. The midpoint of the total compensation minus the cost of fringe benefits (health/dental insurance and long-term disability) equals $940,572. This figure was divided by the staff index factor of 52.1290 to get a 1993-94 base salary of $18,043.
IT IS THEREFORE ORDERED THAT:
1. The Respondent shall continue to provide as health insurance for the 1993-1994 school year, high option with precertification, with 80 % AB dental coverage. The Respondent shall pay $162.46 per month for single coverage, $444.09 per month for family coverage and $232.14 per month for each teaching spouse ($464.28 per month for the teaching couple).
2. Respondent shall eliminate from its contract, the language allowing the Yutan School Board to deviate from the salary schedule as conditions warrant.
3. The base salary for the teachers employed at Yutan shall be $18,043 for the 1993-94 school year.
4. All other terms and conditions of employment for the 1993-94 school year shall be as previously established by the agreements made by the parties with the exception of the provision relating to length of contract days and length of teaching day.
5. Adjustments in compensation resulting from the final order rendered in this matter shall be made by payment of a single sum with a payroll check issued next following the final order entered herein.
All judges assigned to the panel in this case join in the
entry of this Findings and Order.
Entered March 10, 1994.